New Tobacco Regulation Law Clears Legal Hurdle

(January 6, 2010)

When President Obama signed the Family Smoking Prevention and Tobacco Control Act into law last June, it was expected that Big Tobacco would use legal maneuvers to weaken the law’s control over their products.  On Wednesday, January 5, the new law cleared the first of these legal hurdles when a federal judge in Kentucky upheld most of its key provisions which give the U.S. Food and Drug Administration (FDA) the power to regulate tobacco products.

The judge upheld critical provisions of the law that:

  • Require large, graphic health warnings on cigarette packs;
  • Prohibit tobacco companies from making health claims about tobacco products without FDA review; and
  • Ban several forms of tobacco marketing that appeal to children, including brand name sponsorships, tobacco-branded merchandise such as caps and t-shirts, free samples of tobacco products and free gifts with purchase.

The court also upheld the authority of federal, state and local governments to impose additional regulations on tobacco products and marketing beyond those specified in the law. Also, this decision has no impact on the authority of FDA to enact further restrictions on tobacco marketing to protect the public health.

While this is a significant victory for public health, it is disappointing, however, that the judge struck down two provisions of the law.  One bans the use of color and imagery in tobacco advertising in locations viewed by large numbers of youth and the second that prohibits claims implying that a tobacco product is safer because of FDA approval.

The American Lung Association and its public health partners strongly object to these important provisions being struck from the law and urge the government to appeal the decision.  We believe these provisions must be restored, in order to protect the public health, and particularly, to stop tobacco companies from attracting new, young smokers.

 "We believe that the ban on the use of color and imagery in tobacco advertising is both constitutional and necessary in serving the government's goal of discouraging tobacco use by children," said Paul Billings, Vice President for National Policy and Advocacy for the American Lung Association.  "Tobacco products remain the nation's number one cause of preventable death, killing 443,000 Americans and costing $96 billion in health care costs each year."

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